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NLRB refuses to defer to arbitration
August 02, 2006 by Ross Runkel at LawMemo
When will the NLRB defer to arbitration? When will they not?
Here's one case where they will not. United Cerebral Palsy of New York City (NLRB 07/27/2006).
The employer had two collective bargaining units, both represented by the same union, both with collective bargaining agreements.
The employer distributed an employee handbook to both unit and nonunit employees, with unit employees receiving a copy specifically designated for “unionized” employees. The employer gave no advance notice to the union of its intent to issue the handbook, nor did it negotiate over any handbook provisions that differed from terms and conditions specified in the collective bargaining agreements.
In its introductory section, entitled “About this Handbook,” the handbook states the following:
This handbook supersedes all previous ... Employee Handbooks, management memoranda and practices that may have been issued on subjects covered in the Handbook or in effect ... and is intended to incorporate individual policies that will be issued in the future. In case of a conflict ... , the [employer's] most recently issued policy will control.
The handbook set forth a complete set of work rules, many differing from the collective bargaining agreement.
The NLRB refused to defer to the decision of an arbitrator under Collyer Insulated Wire, 192 NLRB 837 (1971) and United Technologies Corp., 268 NLRB 557, 558 (1984), and found that the employer's unilateral changes, as set forth in the handbook, amounted to a rejection of the collective bargaining agreements.
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Prediction: NLRB will defer re information requests
June 22, 2005 by Ross Runkel at LawMemo
The NLRB has a long-standing doctrine of deferring to decisions by arbitrators. However, the Board does not defer when an employer denies a union's request for information relating to a grievance or arbitration. Postal Service, 302 NLRB 767 (1991).
Once the NLRB resumes its full strength of five Members, this probably will change. In Daimler Chrysler Corp, 344 NLRB No. 94 (05/31/2005), The Board held that the employer violated NLRA Section 8(a)(5) by refusing to provide a union with relevant information in connection with grievances.
The employer asserted that the union's request for information should be deferred to the parties' contractual grievance-arbitration procedures. Chairman Battista and Member Schaumber said they would defer if not bound by precedent. However, in the absence of a three-member Board majority to overrule current Board law, they found that the judge correctly applied the Board's policy of nondeferral in information request cases.
My view:
- Full deferral of information requests is a good idea for grievances that have reached the arbitration stage because the arbitrator has control of the case and can act quickly to grant or deny the request.
- For grievances that have not reached the arbitration stage, full deferral will leave the parties with no place to go for a decision. They will get help from an arbitrator only if the grievance is moved to that stage.
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NLRB defers to arbitrator (2-1)
May 27, 2005 by Ross Runkel at LawMemo
The NLRB's policy as to whether to defer to an arbitrator's award created a split among NLRB Members that illustrates the Republican-Democrat division on the Board. Two Republicans outvoted one Democrat.
The Board's deferral policy is designed to preserve Board resources and to encourage private resolution of disputes.
In Smurfit-Stone Container Corporation, 344 NLRB No. 82 (05/16/205) the employer and union had a collective agreement. The employer unilaterally changed the attendance policy. The union grieved under the agreement and also filed an unfair labor practice charge alleging a Section 8(a)(5) violation for refusal to bargain over a mandatory subject.
The arbitrator ruled that the employer had a right to change the attendance policy.
The question for the Board was whether to (a) defer to that award and dismiss the case or (b) not defer and decide the case on its statutory merits.
The majority placed a heavy burden on the General Counsel to prove that the Board should not defer, and found that burden not to be met.
Dissenting Member Liebman argued against deferral. In her view the arbitrator made a decision that the employer had an inherent right to unilaterally change the policy unless the contract affirmatively required bargaining with the union, which is the exact opposite of what Section 8(a)(5) requires. Thus, she would hold that the arbitrator's decision was "repugnant to the Act" and not subject to deferral.
The majority, although describing the award in somewhat disparaging terms, said it was up the General Counsel to prove that the theory of inherent management rights was the only way the award could be explained, and that burden was not met.
My view: If the arbitrator could have written the award to make it clear that the reasoning was not based on a theory that is the opposite of traditional 8(a)(5) reasoning, then there would be less reason for this case to go up to the full Board. Perhaps that was not possible here. In any event, arbitrators should keep in mind that a grievance might parallel an unfair labor practice proceeding, and they should write their awards accordingly. Just remember that if the Board defers to an arbitrator's award, then the parties will not get the benefit (or detriment) of a Board decision on the statutory merits.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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